Courier Journal editor Rick Green confirms that the newspaper will appeal the Jefferson Circuit Court's September 17 opinion affirming Louisville Metro Police Department's denial of a May 2020 open records request for the investigative file into the fatal shooting of Breonna Taylor.
Acknowledging that it was a "close" case, Judge Barry Willett ruled that, "[g]iven the unique amount of public concern and criticism stemming from Ms. Taylor's death, one can make a rational connection between the kinds of records described by Chief [Robert] Schroeder [in his affidavit in support of nondisclosure] and the likely harm that would arise from their premature release."
In his July affidavit, Schroeder stated that the Public Integrity Unit case "is still an active, ongoing investigation."
Premature disclosure, Schroeder maintained, would pose a "substantial risk of harm to the investigation and prosecution," — a risk of harm that is "magnified because of the public attention to this case."
Representing the Courier Journal, attorney Jon Fleischaker — a champion of Kentucky's open government laws since their enactment and one of the laws' architects — harshly criticized the ruling.
Characterizing the circuit court opinion as a "get-out-of-jail-free card" for improper withholding of nonexempt public records by law enforcement officials, Fleischaker observed:
"Under his rationale, all the police have to do with any internal affairs investigation is declare it to be part of a criminal investigation, and they're home free. They don't have to release it. And that's not what the law was intended to be or what it is."
Attorneys for The Courier argued that the investigative file forfeited protection from disclosure when it was sent to outside law enforcement agencies on May 20. Therefore, the newspaper argued, it should be released under the open records law.
After Chief Schroeder fired Officer Brett Hankison in June — basing his decision on the investigative file — The Courier Journal asserted that LMPD's denial was willful.
In pursuing an appeal of the Jefferson Circuit Court opinion, Courier Editor Rick Green identified two priorities: "holding LMPD accountable to Kentucky's law on public records while also providing an unvarnished look at the Breonna Taylor investigation to our readers."
While it is not altogether clear from The Courier article on what statutory basis Judge Willett resolved the dispute, if ever an area of open records law demanded clarification, it is this one.
To begin, where the case is a close one, doubts are typically resolved in favor of access — given the bias favoring disclosure that is embedded in statute and caselaw.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23058
https://law.justia.com/cases/kentucky/supreme-court/1992/90-sc-498-dg-1…
Here, it was not.
But of greater importance, a 2013 opinion of the Kentucky Supreme Court —City of Fort Thomas v Cincinnati Enquirer— drove the metaphorical last nail into the coffin of law enforcement officials who claimed that records in an open investigation are presumptively closed, going so far as to overrule a prior Supreme Court opinion — Skaggs v Redford — that seemed to support that claim (notwithstanding the express language of the open records "law enforcement" exception).
https://caselaw.findlaw.com/ky-supreme-court/1643297.html
https://casetext.com/case/skaggs-v-redford
That case, as we have often noted, declared that "the law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern."
Law enforcement officials have generally ignored the 2013 controlling precedent. Attorneys general ensured a law enforcement friendly outcome by reading a confidentiality provision for intelligence and investigative reports found in Chapter 17 of the KRS as applicable to *all* records in *all* open investigations.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=46877
That trend continues to the present.
https://ag.ky.gov/Priorities/Government-Transparency/orom/2020/20-ORD-1…
It is time for all law enforcement agencies, including LMPD, to be accountable to Kentucky's public records law.
